In the end, Neil Gorsuch’s confirmation — the vote comes Friday — will be all anti-climax. Gorsuch was always going to be confirmed. There was no way around the math, even in these anti-science times and even though Michael Bennet, who broke ranks to vote against the Gorsuch filibuster, will now rejoin most of his fellow Democrats in voting against Gorsuch’s confirmation.
It’s also true that Gorsuch was never going to be confirmed without a fight. Donald Trump’s victory demanded it. The Merrick Garland fiasco demanded it. The new Democratic activism demanded it. The 5-4 nature of the Supreme Court demanded it.
The trouble with the fight was that while there may occasionally be some glory in defeat, there wasn’t much in this one. All Democrats got for their fight was to reinforce the already obvious case for just how weakened their political position is.
Even the winning Republicans weren’t happy with their decision to shut down the Supreme Court filibuster. John McCain, despite voting to do just that, called the idea idiotic. No one should be surprised if the filibuster for legislation goes next — a good thing in any time that Donald Trump is not president. But that’s what a 52-48 majority does these days, even with the majority knowing full well that it could soon enough become a filibuster-free 52-48 minority.
There was little glory here, and few surprises. There wouldn’t have been any surprises, in fact, if you don’t court Bennet, who generally runs to avoid this kind of attention. Now he will almost certainly be the only senator to have voted both to block the filibuster and to reject Gorsuch, angering the base with one vote and the Colorado establishment with the other.
Bennet says he made both votes for the same reason — to block the rightward movement of the Court, noting that “President Trump may have several more opportunities to transform the Court.” He wanted to save the filibuster for that inevitable day when the stakes would be even higher, when Roe v. Wade was on the line.
It has to be said that neither of Bennet’s votes did much to help in that cause. But neither did any other Democratic vote. At least Bennet had a strategy. The Democrats who filibustered did so because they had to be seen as doing something.
But even in these volatile times, this is the one vote on which Republicans were guaranteed to stick together. This wasn’t repeal and replace. This was just replace. Gorsuch is an Antonin Scalia adherent — just a nicer version — and will be just as conservative. Or, as Bennet puts it, “very conservative,” meaning “frozen trucker” conservative, which actually doesn’t seem that nice.
Gorsuch didn’t say anything at the hearings that his opponents were able to exploit, but the fight was never about Gorsuch. Yes, he’s the dream nominee. Yes, he’s almost certainly the best that Trump will ever come up with. Yes, he looks the part. Yes, he’s a Coloradan (as if that should matter to anyone). And, yes, he’s got all the qualifications — just like John Roberts does, just like Merrick Garland does.
But it would have been the same for any conservative nominee. This battle was about keeping the center-right balance of the court and then, in future years, making it far more unbalanced. And the Trump presidency, which is already on its way to being the expected disaster, will in all likelihood be remembered not just for its bizarre dysfunction, but also for an ultra-conservative Supreme Court that would be his accidental legacy.
Many Republicans voted for Trump in order to get a Gorsuch. Mitch McConnell risked much — and won much — in brazenly denying Barack Obama the chance to replace Scalia with Garland in order to get a Gorsuch. You may want to remember that Cory Gardner never even met with Garland on the way to getting a Gorsuch. And you may remember, too — just to stir up the juices more — that several Republicans vowed to block any Supreme Court nominee by Hillary Clinton. In the hopes of eventually landing a Gorsuch.
No one really believed it would happen because no one believed Trump would win. But he did, with a Senate majority, leading to the Gorsuch win.
You don’t need to mourn an end to bipartisanship. That ship sailed a while back. And you don’t need to lament the loss of Senate comity, as many commentators have. That’s not the issue. It’s the country that’s angrily divided, not just our political class.
It was the anger, of course, that got Trump elected. And now there’s the anger, from the other side, that McConnell and Senate Republicans essentially stole a Supreme Court seat.
The anger isn’t going anywhere. If you have any doubts about that, just wait for the next fight, particularly if one of the liberal justices is being replaced. What I mean is, the Gorsuch ending is almost certainly just the beginning.
Photo Credit: Master Steve Rapport